The State v Nyasha Marega

The accused, a female adult residing at house number 3627, Unit D, Seke at Chitungwiza, was charged with assault under s 89(a) of the Criminal Law (Codification & Reform) Act. On 24 March 2021, the accused allegedly poured boiling water over the complainant's body at the complainant's house after a dispute over non-payment for piece work services the accused had performed. The complainant sustained superficial burn injuries on her right breast and right forearm, described as moderate injuries with no possibility of permanent injury. The accused pleaded not guilty, claiming the pot of hot water accidentally fell off the stove. She was convicted after trial on 27 April 2021. The magistrate sentenced her to 12 months imprisonment: 4 months suspended on condition of good behaviour, and 8 months suspended on condition of performing 310 hours of community service at a local primary school to be completed within 9 weeks from 14 June 2021. The Regional Magistrate on scrutiny noted an irregularity in the calculation of community service hours and referred the matter for review under s 58(3)(b) of the Magistrates Court Act.

• Whether the conviction for assault was in accordance with real and substantial justice
• Whether the sentence imposed was lawful
• Whether the calculation of community service hours was correct in relation to the suspended imprisonment term
• Whether the trial magistrate could correct his own sentence after becoming functus officio

The conviction was confirmed. The sentence was corrected by deleting 310 hours and substituting it with 280 hours of community service. The accused was to be informed of the change. Upon effecting the correction, the sentence as corrected was deemed confirmed.

A judicial officer who has delivered judgment and sentence is functus officio and cannot revisit, change or correct their own decision. Any correction of errors in sentence, including miscalculation of community service hours, must be made by the High Court on review, not by the original sentencing magistrate. When imposing community service as a condition of suspension of imprisonment, magistrates must strictly adhere to the community service grid which provides that 1 month imprisonment equates to 35 hours of community service.

The court observed that lawyers are generally known as not being comfortable with figures, and it is therefore necessary for every court that imposes community service to cross-check that the calculation of community service hours in lieu of the suspended term of imprisonment is correct. The court expressed hope that by admitting his error, the magistrate would be sufficiently informed not to commit the same error in future. The court also noted that any instruction given to the community service officer to reduce the number of hours without a formal court order correcting the sentence would be illegal.

This case reinforces the principle of functus officio in Zimbabwean criminal procedure, clarifying that once a magistrate has delivered judgment and sentence, they cannot subsequently amend or correct their own decision, even upon discovering an error. Such corrections must be made by the High Court on review. The case also emphasizes the importance of strict adherence to the community service grid when calculating hours of community service in lieu of suspended imprisonment terms, and the proper use of the review mechanism under s 58(3)(b) of the Magistrates Court Act when scrutinizing magistrates identify irregularities in proceedings.